News: Four special leave grants

The High Court’s most recent grants of special leave consisted of two immigration matters granted ‘on the papers‘ and two other matters granted after oral hearings in Sydney.

The four cases that will now be appealed to the High Court are:

Govier v The Uniting Church in Australia Property Trust (Q)[2017] QCA 12, which concerns the liability of a disability services provider when one of its employees attacked a fellow employee as they swapped caring shifts. While the Queensland Court of Appeal held that the provider didn’t cause (or negligently fail to stop) the attack itself, it ruled that the provider subsequently exacerbated the resultant psychiatric harm by around 10% when it sent letters standing the victim down while the matter was investigated and (after wrongly faulting her for failing to attend a hearing) adopting the attacker’s claim that it was her fault. However, the Court held that no damages were payable, as the provider had no duty to avoid such harm when it was investigating the incident.

Minister for Immigration and Border Protection v SZVFW[2017] FCAFC 33, which concerns what efforts decision-makers must make to inform claimants about a hearing. In this case, applicants for a protection visa did not respond or show up after the Minister and the Administrative Appeals Tribunal sent invitations to the postal address they had supplied, prompting rulings dismissing the claims for insufficient details. The Full Court of the Federal Court upheld a circuit court judge’s ruling that the Tribunal acted unreasonably by not trying to contact the applicants via the email address and phone number they had also supplied.

Shrestha v Minister for Immigration and Border Protection[2017] FCAFC 69, which concerns the precise test for cancelling a visa. The appellants had received higher education visas based on their enrolment in a preliminary degree leading to a bachelor degree, but had those visa cancelled when they were ejected from the preliminary degree due to poor performance. The Full Court of the Federal Court ruled that the reviewing tribunal committed jurisdictional error when it held that cancellation was available due to the applicants’ current ineligibility for a visa, rather than the cessation of their earlier eligibility, but also held that granting relief would be futile, as the visas would have been cancelled anyway.

Tyne (Trustee) v UBS AG (No 2)[2017] FCAFC 5, which concerns when proceedings should be stayed because they are similar to proceedings already brought in another court. Commercial litigation – concerning a Singapore investor’s loan to a Jersey trust run by Australian trustees for purchase of Kazakhstani shares – was brought in Singapore’s High Court (where the investors successfully sued the trustees), the NSW Supreme Court (where the trustees’ claim against the investors for misleading conduct was permanently stayed after the Singapore ruling) and the Federal Court (where a similar action was stayed because of earlier NSW proceeding.) A majority of the Full Court of the Federal Court overturned the latter stay, because the NSW proceedings were not decided on the merits and also because the trustee’s wife and guarantor was not a party to those proceedings.

About Jeremy Gans

Jeremy Gans is a Professor in Melbourne Law School, where he researches and teaches across all aspects of the criminal justice system. He holds higher degrees in both law and criminology. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament's Scrutiny of Acts and Regulations Committee.